Use your camera to take pictures of granny and the kids, snap vacation highlights or capture a beautiful sunset, and no one will say a word. But try photographing a police officer in the performance of his official duties, and you could risk getting arrested, or worse.
Though courts have ruled repeatedly that the police can't prevent people from taking pictures at crime scenes, in bus or train stations or on the streets, too many officers still act as if they never got the message. The number of cases around the country where police have deliberately prevented members of the news media as well as ordinary citizens from recording their activities has been growing in recent years, including several high-profile incidents in Maryland that prompted lawsuits.
That's why the American Civil Liberties Union of Maryland sent a letter last week to all Maryland police departments urging them to make sure officers know that the public has a constitutional right to record what they do. As long as those taking pictures don't interfere with an officer's ability to discharge his or her duties, or put the officers' safety in jeopardy, police cannot prevent them from photographing, filming or videotaping to their heart's content, nor can they legally confiscate a person's camera or film.
The ACLU made that message crystal clear when it sued the Baltimore Police Department over a 2010 incident involving an Owings Mills man who claimed officers deleted his cellphone camera images after he filmed them "roughing up" a female friend after the Preakness that year. The case is still making its way through the courts, but the law clearly appears to be on the plaintiffs' side — a point underscored two months ago when theU.S. Department of Justice threw its weight behind the ACLU's position after issuing new guidelines for how police should handle such cases.
Last week the ACLU of Washington reached a settlement with the District of Columbia police in which the department essentially pledged to adopt the DOJ policy in its entirety. That case involved a man who sued the department after being detained for taking pictures of a police traffic stop in Georgetown. Central to the agreement was a proviso that officers' training include explicit instructions that the public's right to record police activity is constitutionally protected under the First Amendment.
After the ACLU filed suit in Baltimore, the city police department drafted revised general orders similar to Washington's that acknowledged the public's right to record police activity. But the Justice Department has said the changes don't go far enough because they don't require officers' training to include explicit instructions that photographing officers in public places is a protected right.
The city says the changes it has made are sufficient and that they were drafted to take into account not only the public's right to record police activity but also to respond to officers' concerns about people getting too close to, or involved with, arrests and investigations. Those concerns are legitimate, but surely they can be addressed in a way that maintains the bright line that protects citizens' constitutional rights.
The Justice Department guidelines are intended to serve as a model for training police departments across the country in how to deal with citizens who record officers carrying out their official duties in public places. As the number of people carrying cellphone cameras and other devices continues to grow, law enforcement needs to develop clear and consistent policies on how to balance public safety concerns with the requirements of the Constitution. This isn't something police should be resisting; rather, they should seize the opportunity to show that those who enforce the law are equally vigorous in following it.